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Sixty is the new 50 when it comes to American politics. No longer is it sufficient to have a legislative majority in the Senate because of near-constant filibusters, a supermajority of 60 votes is now required to achieve results.
After Republican Scott Browns victory in the Massachusetts special election to replace the late Sen. Edward Kennedy (D), headlines seemingly ripped from the Onion or The Daily Show touted a 41-59 Republican majority over Democrats. It is now widely assumed that Democrats have lost their capacity to govern even though they hold an 18-seat advantage over Republicans in the Senate and a 78-seat majority in the House and a Democrat occupies 1600 Pennsylvania Ave.
Although for many in Washington, D.C., this now seems like nothing more than business as usual, it represents a fundamental shift in the character of the Senate. In the last year, the Senate cast more votes to invoke cloture or break filibusters than at any other time in history.
The problem is this: The indiscriminate use of the filibuster is unsustainable. If it is only possible to govern when one party has 60 seats, then the Senate will not be able to govern very often; until last year, neither party had reached that level since 1978. On the other hand, eliminating the filibuster could lead to abrupt lurches in policy that would prove extremely disruptive. The challenge is finding a way to return the tool to its traditional purpose of allowing the minority party a voice on the very largest questions without permitting it to systematically impede majority rule. That was the insight that allowed resolution of the last crisis over the filibuster, the 2005 showdown over judicial appointments. Thankfully, the Gang of 14 ultimately resolved this standoff, guided by Sen. John McCain (R-Ariz.), for whom I worked at the time.
Lately, however, Congress seems to be forgetting the lessons learned from the Gang of 14 that this is a tool to be used in balance, not to block nearly every item on the agenda for the sake of political gain.
In 2005, as McCains communications director, I had the opportunity to observe the behind-the-scenes negotiations of the Gang of 14. McCain led a bipartisan group of Senators (seven Republicans and seven Democrats) seeking to dissuade Republicans from using the nuclear option to eliminate the filibuster for judicial nominations. Republicans, tired of Democratic filibusters blocking President George W. Bushs judicial appointments, considered changing the rules of the Senate to allow for confirmation votes with a simple majority.
The guiding philosophy of the Gang of 14 held that rather than deploying the nuclear or constitutional option, a political compromise could be reached to deliver the Senate from partisan warfare. And it was. The group signed an agreement stating that its seven Democrats would break with their party and would not vote to filibuster the pending judicial confirmations (except in extraordinary circumstances) and that its seven Republicans would break with their party and vote against enacting the nuclear option.